It has been estimated that thirteen Britons die every day from asbestos related diseases, however, pursuing a compensation claim can be very complicated.
Employees who have been exposed to asbestos during their work may not discover that exposure to asbestos might have caused them harm for a very long time.
This is partly due to the latency period for asbestos related diseases can be very long, normally between 25 and 50 years. When they do discover the disease, it is likely to be extremely difficult to identify when they were exposed to asbestos and whether their employer had been negligent.
This could be further complicated by the fact that the employee may have had multiple employers who might have negligently exposed them to asbestos during their working life. At the point at which the employee is diagnosed with an asbestos related disease, not all of those employers will necessarily still exist.
Asbestos Compensation Claims
Mesothelioma
It has been settled law since 2002 that in cases where the Claimant has contracted mesothelioma, an asbestos related cancer, then the existing employers can be held to have materially increased the risk of harm to the Claimant. This was established in the case of Fairchild v Glenhaven Funeral Services Limited.
In this case, the House of Lords decided that a surviving Defendant employer should not be held liable for the whole of the Claimant’s injury, as it could not be said that, on the balance of probabilities, they had caused the Claimant to contract mesothelioma. However, the Defendant company was held accountable for their proportionate liability, which means that they must compensate the Claimant for the percentage they increased the risk of harm.
Where a Claimant has had multiple employers who may have negligently exposed them to asbestos, it is usually necessary to obtain a report from an expert engineer to comment on the percentage exposure to the Claimant by each employer. Using that evidence the Claimant should then recover a corresponding amount of their total compensation from each employer, or each employer that still exists. Unfortunately, this means that the Claimant may be restricted to a small percentage of the compensation that he/she is theoretically entitled to, if the employer who exposed the Claimant to the biggest risk no longer exists.
Lung Cancer
Since the case of Fairchild it has taken until December 2014 for a similar case to be decided where the effect of the exposure to asbestos has potentially caused lung cancer. These cases can be significantly more complex than cases where the asbestos exposure has caused other diseases, due to the relatively high prevalence of lung cancer in the general population. In these cases, expert medical evidence is vital to proving a case.
Everyone has a 0.5% risk of developing lung cancer. If someone smokes then that risk is quadrupled, to roughly 2%. Similarly, if someone who does not smoke is exposed to asbestos, then the risk is at least quadrupled. However, if someone smokes and is exposed to asbestos then the risk is potentially twenty times greater than the general population.
In the case of Heneghan v Manchester Dry Docks and others, the High Court was asked to decide whether or not six defendants should compensate the Claimant for all of his losses, despite the expert engineering evidence only attributing 32.5% of the Claimant’s exposure to these employers.
The Defendants argued that as they had only exposed the Claimant to 32.5% of his lifetime exposure to asbestos they should not have to compensate his as, on the balance of probabilities, even taking all of them together they were not likely to have caused the lung cancer. The Defendants argued that the Claimant’s case should only succeed if it is proven that 51% of his exposure came from one of the Defendants.
In this case, the High Court accepted that there must be a two stage test. The first stage must ask what caused the lung cancer. If it is not the exposure to asbestos, then the claim must fail. Both the Claimant’s and the Defandants’ medical experts in this case agreed that due to the very high levels of asbestos exposure the Claimant would not, on the balance of probabilities, have developed lung cancer.
The second stage is to ask who caused the lung cancer. In this case it was not possible to prove that any of the named defendants had caused the lung cancer by conventional methods (i.e. proving that they had exposed the Claimant to more than 51% of his total asbestos exposure). Therefore, Mr Justice Jay compared the case to a hypothetical case, whereby a Claimant received equal exposure from three Defendants. In those circumstances, the Claimant could never prove his case against any one of the defendants, so would never be able to recover any compensation, even if he could prove that his lung cancer was caused by exposure to asbestos during his employment.
Therefore, Mr Justice Jay decided in the case of Heneghan that the Claimant could recover a proportionate recovery of his compensation from each of the named Defendants who had materially contributed to the asbestos exposure. This has essentially confirmed that the position in Fairchild relating to mesothelioma cases can also apply to cases where the asbestos exposure has caused lung cancer.
This case reinforces the fact that personal injury claims for asbestos related diseases can be very problematic and therefore it is important to ensure that you instruct an experienced and capable solicitor to pursue a claim.
How Nelsons Can Help
If you need to discuss making a claim for compensation for an asbestos related condition, please contact our expert Personal Injury team on 0800 024 1976 or via our online form.